from the really-not-getting-it dept

Senior legislators from Australia, Canada, Japan, Malaysia, Mexico, New Zealand and Peru today issued a joint letter seeking the release of the text of the Trans-Pacific Partnership Agreement (TPP) before it is signed, to enable detailed scrutiny and public debate. The signatories include political party leaders and legislators who currently or previously held senior political office in their national governments.

On the www.tppmpsfortransparency.org site, there's a list of the politicians who have signed up, and it's interesting to see the variation across the different countries. For example, there's just one politician each from Australia and Mexico, two from Canada, but 21 from Peru and no less than 44 from Malaysia. That gives a rough measure of where resistance to TPP is strongest -- Techdirt noted that Malaysia's support for TPP was wavering as far back as 2012.

Vermont lawmakers are refusing to meet a demand from the office of the U.S. trade representative that they conduct secret talks over the impacts of a proposed international trade agreement.

An ad hoc group of House members was to have a telephone meeting with officials in the USTR on Thursday about the Trans-Pacific Partnership Agreement. But state Rep. Mike Yantachka says that office stated in an email the media should be barred from attending.

the idea that doing all this in the glare of publicity would help the process is naïve, except that my view is that ... actually these people (TPP opponents) are smart," said Groser. "They want this to be done in the full glare of transparency to increase the controversy to the point where it's unmanageable and will destroy the agreement.

The key concern should not be about helping the process at all costs, but making sure that it is in the interests of the public -- here, the New Zealand public. Keeping it secret might well make it easier to sell them down the river, but that's hardly a benefit. And if the "full glare of transparency" does increase the controversy, that suggests there isn't much support for the negotiations in the first place.

In other words, Groser's comments simply confirm what everyone fears: secrecy is being used to push through a bad deal that would never be accepted if negotiated out in the open as happens routinely for other, more democratic discussions.

from the hot-hot-hot dept

Look, for all you critics out there, I admit it: I love video games. They're my primary source of entertainment, since I long ago discarded regular television viewing, most music, and most movies. My entertainment quota is filled by literature and video games. But even my love for video games pales in comparison to this smitten hero from Kansas, who bravely walked out of his burning home with his most prized possession in tow: his Xbox.

“Hold onto what matters most” are words of wisdom that most people strive to live by, perhaps none more so than an Olathe, Kansas man who on Friday morning risked a fiery death by charging into his burning house to save a beloved Xbox. (The exact model is unknown.) Thankfully, both console and human survived, the latter suffering from smoke inhalation.

I carry your controller with me, I carry it in my heart. I am never without it, anywhere I go you go, my dear console, and whatever is done by only me is your doing, my console. I fear no fate, for your games are my fate, and I want no world, for my Xbox is my true world, and it's you, whatever Grand Theft Auto has always meant, and whatever a Mortal Kombat will always sing is you.

Or, you know, something like that...is what I imagine this guy wrote to his inanimate gaming console. Whatever, my point is this: you can love your console, love your games, and love the experience of playing them. But there must be something else in the place you call home that you'd rather save than the saves on your Xbox. Especially if there's even the slightest chance that same Xbox is the one trying to kill you with the fire of Doom-driven hell-demons.

In a strange twist, the disaster was blamed on an electrical junction box, which makes us wonder if the Xbox wasn’t partly to blame. Was it a suicidal act, or simple betrayal? Difficult to say, as is the matter of where exactly he plans to plug the device in now.

In the afterlife, dear reader, if fate has bothered to read its Shakespeare, I fear this gentleman will meet no Juliet more fair then the electronic daughter of Bill Gates.

from the any-means-necessary dept

We already find the concept of "secondary liability" when it comes to copyright troubling enough. It's worrisome when a third party who had no direct involvement in the actual infringement can be blamed for it. Yet, in the legacy entertainment industry's insane infatuation with stopping all infringement, they keep going further up the chain, past secondary liability into tertiary or possibly even quaternary liability -- blaming those further and further removed from the actual infringement. That includes going after companies like ad providers and search engines -- but also, apparently, it includes going after registrars. We've seen some of this recently in various attempts to target registrars, but a ruling in Germany is hugely troubling, finding a registrar guilty because a site registered through that registrar was apparently used by someone to infringe.

Let's be clear just how far this is removed from the actual infringement. The infringement, if it actually existed, was between two or more individuals, who shared a torrent of Robin Thicke's album Blurred Lines. Once removed from that was the torrent site H33T, which did not actually engage in any infringement, but hosted the torrent (which, again, is not the actually infringing file). Another layer removed from that would be H33T's web host. And then we go one more layer up, and we finally get to Key-Systems, the registrar, which was ordered by a court to stop the infringement all those many layers down. And, of course, as the registrar, its only option was to yank the DNS entry, which it did, shutting down the entire site, even if everything else on the site was legal.

It's no secret that Germany seems to be much more open to ridiculous secondary liability claims, leading to some bizarre and dangerous rulings that will stifle innovation. And this seems to fit right in with those in the past. Key-Systems' lawyer agreed, telling TorrentFreak that the ruling "made no legal sense" and had "dire consequences for the kind of services German registrars can provide."

Universal Music, which brought the lawsuit, defended the outcome with some bizarre logic in a comment to TorrentFreak as well. First, a lawyer for Universal claimed that since H33T was a domain reseller, that tied the two companies together, but that makes no sense, especially since the issue of the torrent is totally unrelated to reselling domain names. Just because the companies have a relationship, doesn't make one liable for the others' totally unrelated actions. But then there's this absolutely insane logic:

Bruess says at this point it became “quite clear” that as “the only party involved who could stop the infringement”, Key-Systems needed to take action. That involved Key-Systems effectively disabling the whole domain, but Bruess says that was not his company’s request. They had only one requirement – to disable access to a single URL.

“In essence, Rasch Legal had not asked Key-Systems to close down h33t.com, but to stop one single torrent from being communicated to the public through h33t and h33t’s tracker,” he explains.

But, let's take that ridiculous logic one step further. Say, for example, that the registrar was unable to stop this particular torrent from being shared? Do we move one step up the ladder? They could, say, go to VeriSign, and demand they take down the entire .com database, right? Because that would be "the only party who could stop the infringement" at that point, right? And, even though they just wanted that single torrent taken down, if the only way VeriSign can do it is to nuke most of the internet, well, that's perfectly reasonable, right?

from the urls-we-dig-up dept

The cost of putting something into space has been getting a bit cheaper over time, but it's still not exactly affordable (unless you count the helium balloons that can reach altitudes of around 100,000 feet or roughly 30 km). The edge of space is generally considered to be about 100 km (~62 miles or ~330,000 feet) up. Here are just a few projects making some progress in getting stuff into space on the cheap.

from the contact-chaining-or-beer?-'less-hoppy-than-usual' dept

As was noted here in January, the non-rubber stamp FISA court rubber stamped the latest NSA bulk record request without hesitation, almost as though the previous seven months of leaks had never happened.

That order has now been amended due to the January 17th presidential directive issued in conjunction with the administration's NSA reforms. The amended order, written by outgoing FISC judge Reggie Walton, makes the changes requested (two hops instead of three, RAS selectors approved by a FISC judge) and provides some more background on the NSA's minimization techniques.

While Walton has no problem with the new two-hop contact chaining limit, he does seem concerned with the RAS approval being left to the court. He spends several paragraphs discussing this particular aspect, which seems a bit strange, considering he was the same judge who temporarily limited the NSA to seeking approval from the court to search the collection back in 2009, after uncovering years of agency abuse. (Unfortunately, Smith vs. Maryland is again mentioned in support of the notion that untargeted bulk collections don't violate the Fourth Amendment. This is a 1979 ruling on pen registers that doesn't really apply to the Section 215 collections -- and likely wouldn't except that FISC judge Kollar-Kotelly gave it a very favorable reading back in 2004/2005 [thanks for nothing, needless redactions!].)

Although the Court is satisfied that the effect of the government' proposal to require RAS approvals by the FISC would be consistent with Section 215's definition of "minimization procedures," that is not the end of the discussion. FISA contemplates that the Executive Branch, which formulates the minimization procedures and receives the tangible things from the recipient of the production order, will apply those procedures, with appropriate oversight by the FISC.

Historically, the minimization procedures proposed by the government and approved by the Court under PISA have reflected this allocation of responsibilities, which also recognizes the distinct roles of the Executive Branch and the Judiciary in our system of government. The government' proposal to require RAS determinations by the FISC as a prerequisite to NSA queries of the database would deviate from this framework by giving the Court a more prominent role not just in overseeing Executive Branch compliance with FISC-approved procedures, but in the actual application of those procedures. It could also impose substantial new burdens on the FISC that are not contemplated by FISA.

Walton considers the balance of power and sees a potential tipping point, wherein the court becomes the seat of power. This power-shift could be an issue, but one that could be mitigated somewhat by the installation of a public advocate, as has been suggested by the PCLOB (Privacy and Civil Liberties Oversight Board).

Walton seems resistant to turning the court into an oversight entity, which it really isn't. That's supposed to be the legislative branch's role, but that has been undermined by cheerleaders masquerading as overseers who have withheld information from their fellow legislators. Walton also may not trust the agency enough at this point to feel comfortable approving RAS requests. His earlier declassified court orders pointed out that the agency deliberately misrepresented its tactics and day-to-day operations to the court for nearly a half-decade. Approving an RAS request means having some faith that the evidence being presented is true and Walton doesn't seem to have that confidence.

Why this lack of confidence should mean allowing the NSA to continue to access the collection without limitation isn't discussed by Walton's statements, but that's the only alternative if the court decides it doesn't want this burden, something Walton indicates is a possibility.

The Executive Branch, of course, cannot unilaterally compel the FISC, an Article court, to assume the RAS-approval function, and the Court would be within its discretion under FISA to reject this aspect of the Motion. fig 50 U.S.C. 1861(c)(1) (permitting the Court to grant the govemment's application "as modified").

The Court is cognizant of the fact that this program is under review by the other branches of government and that changes may result from the review. While this policymaking assessment is ongoing, the Executive Branch is asking the Court for additional assistance in reassuring the public that adequate protection is afforded to information concerning United States persons that is being acquired pursuant to a FISC order.

That being said, Walton notes the court is also not expressly forbidden from performing this function and admits the FISA court has performed this function before.

The Court sees nothing in the language of the Act that would preclude it from accepting the Executive Branch's invitation to assume responsibility for making RAS determinations. This role in fact parallels the core judicial function of determining whether applications for authority to conduct electronic surveillance or physical search are supported by probable cause.

Indeed, the Court has previously approved query requests in this matter, albeit under distinct circumstances and pursuant to different authority. Provided that the number of selectors used to query the metadata remains relatively close to the present level, the Court is satisfied that it will be able to undertake the additional work that will be required, at least until the expiration of the January 3 Primary Order. In consideration of the unique facts and circumstances that are now presented, the Court will approve the Executive Branch's proposal to require RAS approvals by the FISC as a prerequisite to queries of the telephony metadata acquired pursuant to the Court' orders in this matter.

As it stands right now, the NSA is back to its 2009 form, in terms of seeking court approval for collection searches. The current order will expire towards the end of March, at which point the court will revisit this requirement. As Techdirt noted earlier, Walton's term with the FISA court is ending, so this decision will possibly rest in the hands of two incoming judges or another FISA judge who may not be quite as amenable to the administration's reform demands. For the time being, the NSA will have to somehow "make do" with showing some sort of evidence before being allowed to search its bulk collections, which is a definite improvement over its previous unrestricted access.

from the makes-you-gag dept

A couple of weeks ago, the UK passed what has become known as the "gagging bill", because it puts major restrictions on how much charities and activist groups can spend while campaigning on political issues before an election. But that wasn't the only thing the UK government was up to on the gagging front, as Tom Pride explains in a blog post:

as if to celebrate the occasion, a Twitter parody account that was critical of coalition policies was closed down after complaints were made from government officials.

The parody account was called @UKJCP, and it was a spoof of the UK's Department of Work and Pensions (DWP), which had sent the following demand via Twitter to the parody account before it was closed down:

Can you stop RT tweets we have not written -- it is not satire and is confusing to customers. It also exceeds your twitter agreement.

As Pride points out:

So now we've not just got government departments deciding what forms of public criticism are acceptable, but also deciding for us what exactly is humorous and what isn't.

The @UKJCP account has been set up with deliberate and malicious intent to devalue and criticise the work of Jobcentre Plus [the JCP in @UKJCP]. In addition, there are a number of rude and potentially libelous tweets aimed at UK government, elected politicians and the heads of large private sector organisations who are committed to working with government on reducing unemployment.

Apart from the obvious concern that UK government officials are openly trying to close down criticism of government, politicians and business leaders -- I'm also pretty shocked that Twitter agreed to the request.

At least Twitter changed its mind on this particular kind of gagging -- unlike the UK government.
Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

from the ridin'-them-pipes-for-free dept

AT&T poured napalm on the network neutrality debate here in the States back in 2005, when then CEO Ed Whitacre proudly proclaimed in an interview he "wasn't going to let Google ride his pipes for free." Ed and most telco executives quite honestly believe that historically-pampered phone companies are entitled to an additional "troll toll" by content companies simply for the honor of touching the ISP network. Never mind that consumers and content companies already pay for bandwidth and (like Google) invest in infrastructure of their own, telco logic dictates that content companies get a "free ride" and must pay more. You know, because.

AT&T's attempts to double dip aren't just domestically dumb, predatory and dangerous, they seemingly have an infectious quality for overseas telcos looking for ways to make additional money for doing nothing, but who aren't gifted with AT&T's knack for truly obnoxious ideas. We've seen it in the way European telcos mimic AT&T's rhetoric in claiming content companies ride their pipes for free, and therefore really ought to pay an additional tax to the phone companies (again, you know, just because). Despite being such a bizarre, fundamentally flawed assumption, the concept carries a lot of traction in telecom circles, thanks largely to hired think tanks and PR flacks who go to great, great lengths to frame it as entirely reasonable.

Yet oddly, the "hey, give me more money for doing nothing" approach hasn't worked well, resulting in AT&T recently introducing their "sponsored data" idea. As we recently discussed, sponsored data involves certain large companies paying AT&T an extra fee to have their content not count against wireless consumer caps. While framed by AT&T as "free shipping" or a "1-800 number for data," it's simply more of the same idea, and potentially devastating for smaller companies and startups that can't afford to pay AT&T to get preferred listing in AT&T's promotional materials. AT&T's effectively imposing entirely arbitrary caps (based in no way on real-world economics or network congestion), then charging multiple times for the same bandwidth.

Vodafone is looking at offering sponsored data to its customers. The move would see customers agreeing to receive sponsored data on their devices in return for lower data bills. CEO Vittorio Colao revealed Vodafone's interest in sponsored dat this week. The CEO said he is closely watching US operator AT&T's recent move to allow sponsored data.

What Colao is watching for specifically is the regulator response to AT&T's sponsored data. If FCC boss and former wireless and cable lobbyist Tom Wheeler signs off on sponsored data as a form of "pricing innovation," that opens the door to the possibility that overseas regulators can be conned into thinking this is actually an innovative idea as well. It's worth noting that AT&T wanted to acquire Vodafone's wireless assets, but it's largely believed that AT&T's incredibly cozy relationship with the NSA has soured European regulators on the idea -- for now. After the European Parliament elections in May, it's very likely AT&T and Vodafone will merge to become one company, which can further help spread AT&T's bizarre and predatory logic worldwide.

Florida Highway Patrol Trooper Donna Jane Watts was on routine patrol early one morning when a Miami police car whizzed past at speeds that would eventually top 120 mph. Even with her blue lights flashing and siren blaring, it took Watts more than seven minutes to pull the speeder over.

Not certain who was behind the wheel, she approached the car warily, with gun drawn, according to video from her cruiser's dashboard camera. "Put your hands out of the window! Right now!" she yelled. It turned out the driver was Miami Police Department officer Fausto Lopez, in full uniform. Watts holstered her gun but still handcuffed him and took his weapon.

The question that routinely follows in this sort of situation ("Where's the fire?" or variations thereof) was greeted with this response:

"I apologize," Lopez said, explaining that he was late for an off-duty job.

120 mph. In a cop car. On the way to a moonlighting shift. And it took seven minutes for the off-duty officer to pull over, which would indicate he probably didn't feel the lights and sirens were for him for at least five of those minutes. (No one pulls over a cop car.)

The end result was the firing of Fausto Lopez. That was the end of the story for him, but Watts' was just beginning. Over the next several weeks, she was subjected to many forms of harassment from Miami police officers, ranging from the nearly-innocuous (the old pizza delivery standby) to the more frightening (unfamiliar cars and police cruisers parked outside her house). Suspecting this concerted harassment effort had spread further than her phone and neighborhood, she requested details on any access of her personal records from the Dept. of Highway Safety and Motor Vehicles.

It turned out she was right: over a three-month period, at least 88 law enforcement officers from 25 different agencies accessed Watts' driver's license information more than 200 times, according to her lawyer.

Armed with this knowledge, Watts is now suing the Miami Police Dept. (and some individual officers) for violating her privacy by abusing their access to the DHSMV database. If she's successful, the payoff won't be cheap. Federal law provides for a $2,500 penalty per violation, which means the Miami PD could be on the hook for over a half-million dollars.

The lawsuit notes that some slaps on the wrist were handed out by Miami PD brass once this illegal access was uncovered.

According to court documents, most of the individual officers named in Watts' lawsuit did face some disciplinary action, usually a written reprimand.

But lawyers for the agencies named in the suit are claiming the officers did nothing wrong -- at least as far as they feel the law goes. According to them, officers can only be held responsible for improper access if they sell the information.

Not so, says the DOJ, which stated what should have been obvious in its own filing:

"There is value in drivers' information and a market for it," the Justice Department lawyers said. "What the defendants fail to recognize is that there is value in drivers' information whether or not it is actually sold."

Perhaps unsurprisingly, law enforcement agencies are pushing back against this mandatory $2,500 fine.

Bill Johnson, executive director of the National Association of Police Agencies, said law enforcement officials are concerned that lawyers are using the law to target individual officers who access the information. He noted that the $2,500 penalty per violation can add up quickly.

"In our view, it was not what the federal law was enacted to counteract," Johnson said. "I think it would be unfair and outside the scope of the legislation to think individuals would get whacked like that."

Right. There's that approach. Or there's fixing the problem. If LEOs (and other government employees) can't keep themselves from accessing a database full of sensitive information for improper reasons, then the hammer should fall on those accessing the data and their department. Nothing stings more than a massive amount of fees, even if, in most cases, it's the taxpayers who are being docked, rather than the officers (and their supervisors) themselves.

There are tons of ways to abuse this access and doing it for financial gain will always be only a small fraction of the improper access. This fine is in place to help ensure accountability -- and there's a national police organization actively trying to undermine this small deterrent. If it succeeds, it will only increase the number of violations and allow those behind the thin blue line to harass citizens -- and cops who won't fall in line -- without fear of serious reprisal.

Press articles written by several Swedish journalists were published on a freely accessible basis on the website of the Göteborgs-Posten. Retriever Sverige, a Swedish company, operates a website that provides its clients with clickable internet links (hyperlinks) to articles published on other websites, including the site of the Göteborgs-Posten. Retriever Sverige did not, however, ask the journalists concerned for authorisation to establish hyperlinks to the articles published on the site of the Göteborgs-Posten.

The key issue that the court had to consider was whether these hyperlinks constituted an act of communication to the public within the meaning of EU law, because if so, that would give the authors of those articles the right to authorize or prohibit their transmission. In its ruling, the Court of Justice found that such links were indeed an act of communication, but with one important caveat:

The Court points out, however, that the communication must be directed at a new public, that is to say, at a public that was not taken into account by the copyright holders at the time the initial communication was authorised.

Applying that to the present case:

As the works offered on the site of the Göteborgs-Posten were freely accessible, the users of Retriever Sverige's site must be deemed to be part of the public already taken into account by the journalists at the time the publication of the articles on the Göeborgs-Posten was authorised. That finding is not called into question by the fact that the internet users who click on the link have the impression that the work is appearing on Retriever Sverige's site, whereas in fact it comes from the Göteborgs-Posten.

That means:

the owner of a website, such as that of Retriever Sverige, may, without the authorisation of the copyright holders, redirect internet users, via hyperlinks, to protected works available on a freely accessible basis on another site.

However, the "freely accessible basis" part is crucial, as the court goes on to note:

The position would be different, however, in a situation where the hyperlink permits users of the site on which that link appears to circumvent restrictions put in place by the site on which the protected work appears in order to restrict public access to that work to the latter site's subscribers only, since in that situation, the users would not have been taken into account as potential public by the copyright holders when they authorised the initial communication.

It's a sensible ruling that's obviously welcome, but it's pretty ridiculous that in 2014 we are still having this kind of discussion about whether the basic mechanisms of the Internet and Web are compatible with copyright law. The default answer for all such questions should be: if it isn't, then copyright clearly needs updating to reflect the realities of the digital world.

from the now-witness-the-fire-power-of-this-fully-armed-and-operational-battle-station dept

Comcast has confirmed reports that the company will be acquiring Time Warner Cable in a deal estimated to be worth around $45 billion. With the ink on their NBC acquisition only just dry to the touch, the deal will tack 8 million broadband subscribers onto the company's existing 22 million broadband customers. Comcast is already the nation's largest fixed-line broadband company, largest cable TV provider, and third largest fixed-line phone company -- and that's before you include the company's NBC or other assets. From a geographical perspective the deal makes sense; Time Warner Cable filling in Comcast's coverage gaps and in particular giving Comcast the prized markets of Los Angeles and New York City, where Time Warner Cable has traditionally under-performed.

The problem is less of market share (the two companies didn't compete directly) but one of consolidated power; allowing one, massive company to control both the content and the conduit to your home across the vast majority of the country -- then just hoping they'll play nice with smaller competitors, startups and consumers. Never worry, insists Comcast, who states that they'll divest a few of these markets (most likely to failed Time Warner Cable suitor Charter Communications) so that they won't be quite as absurdly massive as they might have been.

In a memo (pdf) paving the way for what's sure to be a tough attempt at regulatory approval, Comcast's David Cohen trots out Google Fiber as an ambiguous example of why vertical integration and market dominance concerns no longer apply:

"In today’s market, with national telephone and satellite competitors growing substantially, with Google having launched its 1 GB Google Fiber offering in a number of markets across the country, and consumers having more choice of pay TV providers than ever before, Comcast believes that there can be no justification for denying the company the additional scale that will help it compete more effectively."

That choice is going to be Comcast, and with less competition than ever across huge swaths of the United States, you can be certain the company will be bringing their planned usage caps to your neck of the woods before long -- impacting consumers, startups and small businesses across the country. Again, no sweat argues Comcast. In a "public interest benefit summary," (pdf) Comcast again states you don't have to worry about any of this, because, well, Google Fiber and Netflix. Or something like that:

"A number of online businesses like Apple, Google, Amazon, Hulu, Netflix, and a host of smaller companies are entering the online video space and trying to position themselves as competitors. While we view online businesses as complementary to our business, previous antitrust concerns about further cable consolidation are truly antiquated in light of today’s marketplace realities."

Right, because there's no way that a massive company like Comcast with that kind of lobbying power and market leverage could find it easier than ever to squeeze these companies through restrictive content licensing deals, regulatory capture, or usage caps, right? And oh, just a reminder Comcast, you own Hulu, and alongside other broadcast owners have worked hard to ensure it never disrupts the legacy TV apple cart. All in all, Comcast would prefer you not worry your pretty little head about any of this stuff as we wait to see whether new FCC boss Tom Wheeler (formerly a lobbyist for the cable industry) approves Comcast's latest adorable growth spurt.

from the the-War-on-Drugs-has-no-time-for-your-outdated-'rights' dept

Early last year, the news surfaced that the DEA was bypassing Oregon state law by using administrative subpoenas to get around the state's warrant requirement for drug prescription database access. "Administrative subpoenas" are yet another government tool that allows agencies to seek information that would normally require a warrant, but without the hassle of running it past a judge or even showing probable cause.

For the first time, a federal judge has ruled that patients have a reasonable expectation of privacy in their drug prescription records, and that law enforcement must obtain a warrant in order to search such information…

“This is a victory for privacy and for the constitutional rights of anyone who ever gets drug prescriptions,” said ACLU Staff Attorney Nathan Freed Wessler, who argued the case last month. “The ruling recognizes that confidential medical records are entitled to the full protection of the Fourth Amendment. The court rightly rejected the federal government’s extreme argument that patients give up their privacy rights by receiving medical treatment from doctors and pharmacists.”

As the ruling points out, citizens have long associated privacy with medical treatment, something that has gone hand-in-hand dating back to the 4th century B.C.E. and the origin of the Hippocratic Oath. It also points out the obvious: federal law itself (HIPAA) contains built-in privacy protections. (Hence the form you have to sign, the privacy info sheet you're handed on every visit, and signs everywhere telling you to stand behind them for the privacy of the patient in front of you.)

The judge's decision also notes that stripping away this expectation of privacy will have a chilling effect on those seeking medical care, something that could have very adverse effects on the health of people who might avoid seeking treatment because they fear their medical records will be exposed.

As the ACLU notes in its press release, it's not exactly happy the state of Oregon has chosen to create a centralized database of drug prescriptions, but, if it is going to do so, it has at least chosen to take the privacy of those contained in the database very seriously.

This decision strikes a small blow against the government's routine abuse of "exceptions" to warrant requirements as well as against its even more routine abuse of the "third party doctrine," which the DEA actually used to claim that talking to a doctor is no different than dialing a phone. The DEA knows there's a huge difference between these two "third parties" but applying that knowledge means showing probable cause and getting a judge to sign off on the warrant, two aspects it apparently feels only hampers its War on Drugs.

from the crying-wolf dept

A lot was made last week of the blog post by iScan developer David Raphael, who managed to get a front line Verizon support tech to admit Verizon was intentionally throttling Netflix streams (and essentially anything hosted on AWS) for home FiOS users. The resulting press cacophony largely consisted of outlets claiming that this was indisputable proof positive Verizon was violating net neutrality. Except as we noted previously, while anti-competitive shenanigans certainly aren't out of character for the telco, there really wasn't enough actual evidence proving that the problem wasn't the result of peering, routing, or other congestion issues, the kind that Netflix and YouTube users have been complaining about for much of the last year.

While some believe Verizon might be intentionally letting peering links saturate to their own benefit, the company issued repeated statements denying traffic discrimination, and blaming Netflix for the problems. Strangely Netflix wouldn't comment to anyone in the press on what was happening, but the company did for whatever reason feel free to tell J.P. Morgan analyst Doug Anmuth privately that Verizon is not throttling Netflix streams:

"J.P. Morgan analyst Doug Anmuth...says he has been talking to Netflix CEO Reed Hastings and CFO David Wells, and they told him they don’t think cable and telco companies are hampering the company’s video streams. Anmuth doesn’t have much to report on the topic, so here are his comments in their entirety: "Netflix does not seem overly concerned regarding Net Neutrality, and continues to believe that violations would be escalated quickly. Netflix also indicated that it has no evidence or belief that its service is being throttled."

Granted no "evidence or belief" doesn't mean Verizon isn't up to no good; the company has made an art form out of using bogus technical jargon to justify anti-competitive and closed behavior, especially on their wireless network. But the admission from Netflix (which sees a lot of the obfuscated peering data consumers don't) at least suggests Netflix can't prove it. It's not like Netflix has any vested interest in lying for Verizon's sake either; the company just got done threatening ISPs in an investor letter (pdf) that if ISPs were caught manipulating traffic anti-competitively, Netflix would "vigorously protest and encourage our members to demand the open Internet they are paying their ISP to deliver."

The entire story continues to be kind of fascinating in that despite press comments from a universe of very smart networking experts who claim to know what's going on, nobody actually knows what's going on. The full data simply isn't available to the public. A lot of people are claiming they're seeing throttling by their ISP, only to later realize they're not seeing the full picture. Claiming net neutrality every time the network farts is dangerous in that if we keep crying neutrality wolf without indisputable supporting evidence, less attention will ultimately come when a violation does truly occur.

from the the-system-forgets-to-work dept

On December 19, eight members of Texas’s Burleson County Sheriff’s Department banged open the door of the double-wide trailer rented by 28-year-old Henry Magee and his girlfriend. It was between five and six AM and the deputies, who were there to search for marijuana and stolen weapons, set off at least two flashbang grenades in an attempt to surprise and disorient Magee, their suspect. The leader of the team, Sergeant Adam Sowders, a seven-year veteran of the department, had requested the warrant be “no-knock,” meaning the police could enter the residence without announcing themselves. But it was possibly do to the confusion caused by the sudden entrance of the cops that led to Magee opening fire with a semi-automatic weapon and hitting Sowders. The cop later died, and Magee has been charged with capital murder, which can bring the death penalty in Texas.

A squad of officers smash through a person's door (possibly unannounced) pre-dawn and are greeted by gunfire. The surprising thing is that this doesn't happen more often, especially in a state like Texas, where a man's home is often his well-armed castle. But the prosecutor didn't see the deputy's fault in this incident and pursued capital murder charges. Keep in mind, part of what was being sought in the raid was an ultra-dangerous drug that is currently legal in two states. Also keep in mind that the guns they found weren't stolen, but because of the marijuana Magee possessed, the previously legal weapons were now illegal.

"This was a terrible tragedy that a deputy sheriff was killed, but Hank Magee believed that he and his pregnant girlfriend were being robbed," Magee's lawyer, Dick DeGuerin, told A.P. "He did what a lot of people would have done. He defended himself and his girlfriend and his home."

DeGuerin, a well-known defense attorney who has been practicing for half a century, said "he could not immediately remember another example of a Texas grand jury declining to indict a defendant in the death of a law enforcement officer."

The district attorney who pursued the capital murder charges against Magee even admitted the evidence against him wasn't solid.

"I believe the evidence also shows that an announcement was made," Renken said. "However, there is not enough evidence that Mr. Magee knew that day that Peace Officers were entering his home."

Despite this lack of evidence, Julie Renken went ahead and pursued capital murder charges in front of a grand jury, an entity most notable for its willingness to "indict a ham sandwich." The fact that Magee was able to walk away from that charge still remains the exception to the rule. As far as grand juries go, indicting is what they do best. They have it down to a science, as Gideon at A Public Defender points out.

During a single four-hour workday last week, a Mecklenburg County grand jury heard 276 cases and handed down 276 indictments.

That means the 18 jurors heard evidence, asked questions, weighed whether the charges merit a trial, then voted on the indictments – all at the average rate of one case every 52 seconds.

276 indictments, all in under a half-day. Not a single one of the 276 accused were found not guilty. This is the grand jury system running on all cylinders.

You read something like that and you just have to laugh. You have to laugh because it’s so improbable and so absurd that it must be true and that it can only happen here, in these United States of America, the best country in the world with the best justice system in the world, because by God, we hate criminals.

A grand jury rings up a 276-0 shutout in less time than it takes the average officer worker to get to their lunch break, but when people question whether a true justice system should be giving this much power to an entity that only hears one side of the case (the prosecution's), the supporters point out the rarities, like the one above, that supposedly prove the system (and its 52-second indictments) works.

The biggest obstacle to curbing grand juries (much less eliminating them) is the government itself.

The appeal of the grand jury to the government is obvious: you get to present your allegations to a group of civilians who aren’t in any way equipped to determine the veracity of the charges and who are most likely to side with you.

If that description doesn't seem too far removed from the rubber stamp of the FISA court with its non-adversarial approach, there's a good reason for that. Political figures harness voters by vowing to be tough on crime -- and there's no greater crime than terrorism. The best way to pitch a shutout and satisfy constituents demanding a "safer" country/city/neighborhood is to remove the batter from the equation.

from the not-how-it's-supposed-to-work dept

When they write the future tome discussing how to run a video game company in such a way as to piss off as many customers as humanly possible, it seems quite likely that it will be titled The Electronic Arts Guide To Business. Between doing the old customer demand flip-flop when it came to SimCity, attempts to lock their games down from the modding community, and their practice of shutting down games in which real customers have spent real money, the company at times appears to be some kind of macabre performance art piece on how to be as anti-customer as possible. Word of mouth has supplied a reputation for EA that is less than desirable, leading some to wonder how they might be able to turn their PR ship around.

Dungeon Keeper sure has a high rating on the Google Play Store for a game loathed by many. Its 4.5 star average of over 84K user reviews suggests that people are really liking EA's microtransaction-heavy affair. Only there's one thing this rating system isn't telling you: customers are only given the option to rate the game if they say they'll give it five stars.

See, on Android you're given the option to rate the Dungeon Keeper after a certain period of play. Only instead of tapping the appropriate number of stars you think it deserves, you're asked if you think it should receive "1-4 stars" or "5 stars". As reported by PocketGamer, selecting the latter option takes you to the game's Google Play Store where you can rate it, while the former option simply takes you to a new "feedback" prompt asking "What would it take to make Dungeon Keeper a 5-star game?" Your options: "email us" or "not now."

Ah, it's so simple! If you want to make sure your games are highly rated, attempt to convince customers that they can only rate the game with a perfect rating! More beautifully, while you can still rate the game whatever you like after promising a 5 star review, this method allows for the wonderful practice of forcing your customers to lie in order to do so. It's like an evil multiplication machine!

Oh, and that ability to lie and review at less than five stars? That's what makes this sneaky attempt to garner favorable reviews a-okay, according to EA.

“We're always looking at new ways to gather player feedback so that we can continue to improve our games. The 'rate this app' feature in the Google Play version of Dungeon Keeper was designed to help us collect valuable feedback from players who don't feel the game is worth a top rating. We wanted to make it easier for more players to send us feedback directly from the game if they weren't having the best experience. Players can always continue to leave any rating they want on the Google Play Store.”

Right, except you aren't being upfront about that with your customers, whose feedback you so greatly desire. Unless that feedback is a low rating in the marketplace, in which case your customers can either figure out they have that option on their own, or they can suck it. Meanwhile, of course word about this devious attempt will make the rounds, cementing most folks' opinion of EA as being as consumer un-friendly as possible.

from the the-front-rent-and-the-back-rent dept

The EU Commission has just extended its deadline for comment on its copyright review/reform for an extra 30 days. Those possibly affected by any changes routed through this would do well to add their input, especially as a couple of the issues being considered would turn normal internet sharing into copyright infringement.

“Should the provision of a hyperlink leading to a work or other subject matter protected under copyright, either in general or under specific circumstances, be subject to the authorization of the rightholder?”

A similarly pivotal one:

“Should the viewing of a web-page where this implies the temporary reproduction of a work protected under copyright on the screen and in the cache memory of the user’s computer be subject to the authorization of the rightholder?”

One could simply paraphrase these questions into: would you like to break the Internet as we know it and criminalize Internet users for viewing a web-page? These questions are not theoretical; they are currently in front of the Court of Justice of the EU (CJEU).

If these are codified, embedding a video on a third-party site would trigger a licensing fee. This isn't just a concern for bloggers or others who operate websites. This would affect everyone. Post a link or a video via Facebook or Twitter? That's infringement. Sure, larger sites would probably be covered by blanket licenses, but that's of very little comfort. Throwing permission/licenses into the third-party mix would create problems everywhere.

The second question is even worse. Now, even those simply viewing the posts of others would be infringing simply because a temporary cache copy has been created for the duration of the viewing.

To any reasonable person, both questions are patently ridiculous. For one thing, attempting to extract fees for embedding or linking to content is double-dipping. YouTube and others already pay licensing fees for content hosted at their sites. Attempting to add a layer of "permission" on top of third-party postings not only creates a legal nightmare for social media services, but also creates the very real possibility of encouraging copyright trolling. Anyone posting a link/embedding a video or simply viewing copyrighted content becomes a potential lawsuit target.

AKM has sent a letter to its 20,000 members, asking for them to comment on the EU Commission's copyright reforms. All well and good, except that AKM seriously wants the first of these considerations to become EU law and has apparently altered the EU Commission's questionnaire in hopes of adding 20,000 supporters' "voices" to the collected comments.

The original questionnaire looks like this:

According to FutureZone, AKM sent this out, but removed everything but the "Yes" option from this question. It also added some canned wording in the explanation area, suggesting "reasonable compensation" for the embedding of music videos.

AKM fortunately didn't make up its members' minds on cached copies, but it still assumes an embedded video should be subject to double-dipping -- once from the original host and once more from anyone embedding it.

AKM's statement on its site (posted Feb. 5th) expresses its displeasure with the EU Directive, which it obviously feels offers inadequate compensation.

The EU Directive does not create a fair, level playing field and does not match Austrian standards.

"Fair and level" isn't really what AKM is looking for. That much is apparent in its alteration of the original EU Commission questionnaire.

AKM's stance is being embraced by perhaps the most infamous of collection societies, GEMA. Spokeswoman Ursula Goebel said GEMA was aligned with AKM. Hyperlinks and cached copies aren't necessarily an issue (or at least one neither collection society feels it can safely approach at this time) but embedded videos are. According to Goebel, embedded videos should be licensed because the end user isn't aware of where the videos originate. In other words, those embedding videos should pay a fee because viewers might think the blog, etc. is the originating source. Taxing one person for someone else's ignorance hardly sounds like a logical reason for adding licensing fees to embeds. The article goes on to question how GEMA hopes to avoid double-dipping on licensing fees (it doesn't -- see below) while noting that this is perfectly in line with GEMA's business model, which is predicated on the assumption that any sharing of content should be subject to licensing fees. (A hearty thank you to Jakob Kucharzyk for his translation help.)

GEMA isn't shy about its double-dipping aspirations and has been fighting YouTube for a higher fees for several years now. To date, the end result has been little more than the endless aggravation of German YouTube viewers, who are greeted with the quizzical "Sorry" faces at a disproportionately higher rate than any other nation in the world.

The upside is that the comment period has been extended. The most hardline collection societies don't appear to be overly eager to shatter the web in search on income, but AKM's apparent "remix" of the EU Commission's questionnaire (and GEMA's thumbs-up) shows how far they're willing to go to "tax" a stream both coming and going.